May062014

Rep. Kristi Noem, R-S.D., hopes an effort to roll back an expansion of the federal Clean Water Act will meet with the same success found in unraveling plans to regulate workers on small farms.

Noem is one of 231 members of Congress who signed a letter to top federal officials complaining that expanding clean water regulations to cover water-filled ditches, small marshes known as prairie potholes and seasonal wetlands would be "legally and scientifically unsound."

"This rule has been built on an incomplete scientific study and a flawed economic analysis. We ask that this rule be withdrawn," reads the letter addressed to EPA Administrator Gina McCarthy and Secretary of the Army John M. McHugh.

On March 25, the EPA and U.S. Army Corps of Engineers proposed a rule that would assert Clean Water Act jurisdiction over nearly all areas that connect to navigable waters.

"I am extremely concerned by the EPA and U.S. Army Corps of Engineers' recent assertion that ditches, prairie potholes and seasonally wet areas should be under the federal government's control," said Noem. "The proposed rule was built on an incomplete scientific study and a flawed economic analysis, which is why we have asked the EPA to withdraw the rule."

In essence, according to the complaint letter, the proposed expansion of the Clean Water Act would give the EPA authority over any body of water -- no matter how small -- that links to downstream navigable waterways now covered by the Clean Water Act. This, says Noem, would place a regulatory burden on farmers and other business owners whose property might contain a ditch filled up with spring snow melt or a summer rainstorm.

"Most producers are not used to the Clean Water Act coming into play in a ravine or ditch. Those have never been a navigable water before," Noem told The Daily Republic. "This would broadly expand what is considered navigable water. People recognize this rule would change the federal government's authority to touch their land. People are alarmed."

The Clean Water Act, originally passed in 1972, governs such things as discharge permits and requirements for water quality standards.

"(The) proposed rule would assert CWA jurisdiction over nearly all areas with any hydrologic connection to downstream navigable waters, including man-made conveyances such as ditches. Contrary to your agencies' claims, this would directly contradict prior U.S. Supreme Court decisions, which imposed limits on the extent of federal CWA authority," reads the letter.

If the EPA is successful in expanding the Clean Water Act, it would not immediately affect fishing or hunting in those areas, Noem said. And she does not expect it to affect the dynamics of the years-long debate over public access to navigable waters in the northeastern part of the state. The Legislature and Game, Fish and Parks Department have long wrestled with a bitter controversy over whether new waters appearing on privately owned and taxed land should be accessible for fishing as currently allowed by state law.

However, Noem cautions that if the EPA changes its rules in the future, and more bodies of water are covered by the Clean Water Act, it's possible such future decisions could affect fishing and hunting.

Noem is urging opponents of the new rules to file public comments before the public comment period closes on July 21. She said such public comments and broad opposition in Congress worked to push back a proposal by the federal Occupational Health and Safety Administration (OSHA) to regulate workers on family farms with fewer than 10 employees.

"This issue has had the same concern level, or even greater," Noem said.

People can file a public comment in on docket ID No. EPA—HQ—OW—2011—0880 a few different ways: